Answer: This clause of the federal and Nebraska Constitutions protects
a defendant against three separate abuses:
- A second prosecution for the same offense after acquittal;
- A second prosecution for the same offense after conviction; and
- Multiple punishments for the same offense.
Question: What is the Double Jeopardy Clause?
In the simplest of examples, the Double Jeopardy clause of the Nebraska
and federal Constitutions is easy to understand and apply. For example,
if a defendant is acquitted of assault after a trial, the State cannot
re-file the assault charge against the Defendant, and take another shot
at convicting him or her. Nor can the State re-file the charge against
a defendant who was convicted at a trial.
Seems simple, right? Of course, were it that simple, I would not be writing
about it today.
Believe it or not, it is quite possible to be prosecuted, and punished
twice, for the same crime. It is because of the theory of “Dual
Sovereignty”. Under the theory of Dual Sovereignty, you can be prosecuted
by both the Federal government, and a State government.
For example, if you are arrested for trafficking marijuana in Nebraska,
the State of Nebraska can prosecute you for violating the Nebraska controlled
substances act. However, because marijuana is also illegal under Federal
law, the Federal government can also prosecute you for the same crime.
You can thus be tried, convicted, and sentenced twice for the same crime.
While this seems to violate many notions of justice and fair play, it
is, in fact, the law.
Drug trafficking cases bring up another question about Double Jeopardy,
that is, because drug trafficking often involves crossing state lines,
can a defendant be prosecuted by multiple States for one crime of drug
Under Dual Sovereignty, the answer is “yes”. For example, if
a defendant were to have driven a load of marijuana from Colorado into
Nebraska, into Iowa, and into Illinois, the defendant could be prosecuted
5 times for this offense. While selling retail marijuana is legal in Colorado
to a degree, it cannot be trafficked out of the state. Further, marijuana
is still illegal in Nebraska, Iowa, Illinois, and on the federal level.
Each jurisdiction could bring its own case against the defendant.
It is not likely that each county within each state could bring its own
prosecution, because even though prosecutions are generally handled by
and in the county in which the crime occurred, charges are filed in the
name of, and on behalf of, the State in which the crime occurred.
Fortunately, this scenario does not come up very often. Even prosecutors
realize there is little point in doubling up the charges and/or punishment
against a defendant.
If you have been charged with a crime, or even if you are simply in a
situation where the police want to speak with you, it is very important
that you contact the Berry Law Firm. The criminal defense attorneys at
the Berry Law Firm are experienced, and aggressive with the government.
In many cases, clients who have followed the advice of the Berry Law Firm
attorneys have avoided being arrested, or even having any further contact
with law enforcement at all. While every case is different, contacting
the Berry Law Firm when you might be in trouble may be the key to keeping
you out of formal legal trouble.